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SJC 13492 in the matter of an impounded case
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and SJC 13493 in the matter of an impounded case.
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Okay, Attorney Chayette?
Yes, yes, thank you
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Chief Justice Budd and may it please the court.
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My name is Kara Chayette and I represent the two juveniles.
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These courts have been paired because they raise
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identical statutory and vagueness challenges
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to chapter 123, section 35.
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And I do expect to devote most of my time today
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to those issues, but I'd be remiss if I just didn't note,
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put a pin right up front, that even if the court disagrees
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with me on the constitutional and the broader challenges,
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that there are very fact-specific reasons why my clients
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are entitled to have their commitments vacated.
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And I'll just, the complete lack of findings
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in the young man's case in Bristol County
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and the court's really problematic,
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least restrictive alternative analysis
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in the young woman's case in Essex.
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Can I ask you about that?
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'Cause I was curious, 'cause I think you've got
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a very good argument on JP.
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But on ES, there was an issue where there was an inquiry
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about other available, less restrictive placements
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and none seemed to be available.
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Why was that deficient?
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Well, because, sort of think in terms
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of the order of operations, this, you know,
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we'll get to what I claim are
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a lot of the procedural defects
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that animate my constitutional challenge,
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but this isn't really a phased statute like section 12 is,
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but there are sort of, you make one determination
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and then you move to the next and then you move to the next.
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So is there a substance use disorder?
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Is there the substantial, very substantial,
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very imminent likelihood of harm absent hospitalization?
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If so, if there's that grave danger,
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is there some lesser restrictive alternative
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to hospitalization?
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What the judge did was having heard the clinician
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that my client didn't meet the harm criteria.
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Well, if there's no other alternative to hospitalization,
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isn't she in danger?
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She flipped the analysis.
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That's my problem with that.
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And the fact is-
I don't see that.
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I thought she did it.
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I thought she did it right.
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You've got the second ES is using fentanyl.
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She's disappearing for four or five days
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without telling her parents where she is.
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We have a clinician finding that she has the disorder
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and the judge is going, do you have any place to place
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or you have any place to place
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or even has the person come out of the room
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and come back to the room?
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And they said, we still don't have anywhere to go.
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Isn't that no less restrictive alternatives?
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Well, so I don't wanna, again, part of my big claim
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is that given that the clinician said
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this young woman does not meet the criteria
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for commitment under any of the harm prongs.
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I think if you read that transcript,
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there's the judge, here's the clinician
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and just keeps, well, you say she's not a danger,
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but what about, is there any other place for her to go?
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Don't you have to go and investigate that?
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And there was a little bit of badgering of the judge
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to this clinician to change her testimony
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if there wasn't another place available that afternoon.
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There are three parts to this statute, right?
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And the first part, I tend,
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just to put my cards on the table,
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I tend to agree with you that we need medical testimony.
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It's necessary, it may not be sufficient,
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but it's necessary to support a finding
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that you meet these two diagnostic criteria.
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I don't though find that you need,
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a judge can decide how dangerous that person is without,
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that's not a medical determination,
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whether they're gonna arm themselves or someone else,
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particularly if they're taking fentanyl
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and disappearing from the house for four or five days.
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And how old is she, 16?
She's 16.
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To me, that's like red flag danger.
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And even a judge can do that without medical testimony.
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I cannot point the court to one definitive place
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that stands for that proposition.
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But part of the, but I-
I can.
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Oh, okay.
Seven and eights.
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Well-
I mean, seven and eights,
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that's what the judge does.
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The judge makes the determination on whether or not
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they're in danger either to themselves or to someone else
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or whether or not they can,
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and the judge can do that based on the testimony
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on the first part.
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So the judge does it in seven and eights.
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But in every other commitment provision,
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there's been some clinical professional evaluation
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that indeed the person being drawn into the court
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to be further evaluated,
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that there's been some professional assessment
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that indeed this person falls,
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we have reason to believe that this person falls
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within the ambit of the statute.
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Can you help me like on an incompetent to stand trial
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and you have the security of Bridgewater State Hospital.
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My read, my memory is that the clinician, of course,
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on a section 15 testifies,
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and usually in court on a 15A, I guess it is.
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It says that this person is not competent to stand trial.
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And then the next inquiry by the court
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is where should we place this person?
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And we've been pretty strict on this and say,
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well, if they're a harm to themselves or others,
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they have in their mail,
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they have to go to the strict confines of Bridgewater.
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Is it that the judge gets to do that?
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The clinician doesn't say the placement,
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the judge gives the placement, correct?
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Or am I wrong about that?
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You know, I've having never appealed
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or litigated one of those,
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I don't feel competent to answer that particular question.
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But I'd actually, I think when we start thinking
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about 15 and 16, I'd actually point the court to Garcia.
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In Garcia, right?
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So there's a full blown trial
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with all of its procedural protections.
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And then there's the question about whether this individual
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who's been found NGRI is gonna be hospitalized.
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The Commonwealth bears the burden of proof.
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The Commonwealth's expert says this individual
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does not need to be hospitalized.
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And the court registers in its decision,
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its concern about the fact
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that there was no competent expert testimony
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that the individual needed hospitalization
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and says in a footnote, we leave for another day,
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whether expert testimony is necessary
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to make this kind of a commitment decision
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because otherwise it leaves unfettered discretion
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in the hands of a judge to determine
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who falls within the ambit of a statute.
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And it points in that footnote, the court looks to 123A.
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And that's one of my other arguments that we've got the,
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so coming back to-
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Let me just stop you right there for a second.
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That's an interesting point.
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But in Garcia, we're talking about commitment
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to a locked facility and the like
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after an NGRI finding, right?
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Here, we've said before that section 35s,
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although they obviously implicate a liberty interest
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and you've done a great job of telling us what that is,
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it's less restrictive than a NGRI finding, right?
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NGRI finding.
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Well, so the, well, you mean the commitment
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that followed like in Garcia,
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it was a 40-day evaluation right in the hands
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of some clinical professionals to determine
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whether in fact the person should be subjected
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to a longer hospitalization.
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'Cause there's gradients of these things
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in the legislature, like in the sexually dangerous persons
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with the QEs, they've said, "No, you can't."
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And we've said, "You can't do this without a QE.
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"You need a QE."
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And you're basically asking us to hold the same
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in a section 35.
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So a couple of things on that.
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One, I'm actually, I think that when you look at Garcia,
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which was a 40-day hold for evaluation,
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that looked to the SDP context.
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In Miner, the rule that Miner imported
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into section 35 commitment hearings
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for specific factual findings,
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it cited to SORB cases for that proposition.
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SORB and SDP are different,
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but they're also looking at these predictive
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dangerousness assessments of individuals.
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There are a couple of other cases.
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AM also cited out to 123 for, as an analogy,
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'cause that's what we do, right?
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We argue by analogy.
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But the Garcia case, and then if I can a little bit
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get to Justice George's question,
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'cause a case that I found as I was preparing
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for argument was Carrillo, which I hadn't read before.
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I had not registered that it, that's the,
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I, let me, the site is 483 Mass 269.
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I hadn't registered originally
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that it had any connection at all to section 35,
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but in listening to the oral argument,
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thank you, Fran Connelly,
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for getting all those on the website.
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Actually, Justice Gaziano, you raised Carrillo in that case.
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That was where some, you know,
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you vacated the conviction for involuntary manslaughter
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because of the young man who gave his friend
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or distributed to his friend
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that heroin that led to his overdose.
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And Amiki, in that case, and Justice Gantz
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pressed the parties, what, how does this fit
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within our section 35 jurisprudence?
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If the possibility of overdose from heroin
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is enough to get a conviction for involuntary manslaughter,
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doesn't that mean that the possibility of overdose
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satisfies the harm criteria?
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And what the court said in that case
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is what the Commonwealth argued
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was the vulnerability to overdose
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was heightened because the victim was in withdrawal.
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And it was heightened because the potency was so great.
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And the court said those things
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are not susceptible to judicial notice.
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There was no expert testimony
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that the Commonwealth offered for those.
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And those are not things that reasonable people would know.
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So that, I think, is the closest
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that I can get to that when you get to that harm criteria,
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that's sort of the rubber meets the road.
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And the other thing that I draw the court's attention to
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in terms of the procedural deficits in these cases,
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right, there's no notice.
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You get dragged in.
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You know, my loved one can say, Kara has a problem.
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And I have no notice.
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I'm in front of a clinician getting evaluated.
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And there's really, I know the amicus argued
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that these are really adversarial proceedings.
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But who's the adversary?
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You know, the judge is the fact finder.
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The judge is applying the law to the facts.
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The judge is like the prosecutor
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and certainly in the Essex case was.
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And if the judge can say, well, fentanyl's really toxic,
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right, I mean, what are the effects of that?
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Then the judge is effectively opining.
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I think, well, actually, ironically,
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one problem you have on Carrillo
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is that we said that heroin, as it is, isn't enough.
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And then we wrote, except if there's fentanyl.
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Well, no, but that's, first of all,
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that's combining if heroin is laced with fentanyl,
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but it would have been, so that would have been
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one of those X factors that-
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Right, that was a plus factor, right.
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But the other thing, I didn't include in my brief,
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I was running up against my word limit time.
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But so we say, if you were to tell me,
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well, SDP's its own thing, one day to life,
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we're not gonna analogize for that.
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Then why is it that if I'm sued for malpractice,
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the plaintiff doesn't even get to the jury
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if there's not an expert about the standard of care.
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Right, I mean, so my reputational harm,
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my investment in my education is sufficiently protective
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that there's gotta be an expert
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00:12:38.920 --> 00:12:41.380
that's gonna stand between me and a jury.
263
00:12:41.380 --> 00:12:44.190
But in these cases, a family member,
264
00:12:44.190 --> 00:12:46.680
and it's almost all a family member.
265
00:12:46.680 --> 00:12:50.250
Yeah, not if we impose what you say on the first prong,
266
00:12:50.250 --> 00:12:53.970
which is you need clinical support for a diagnosis
267
00:12:53.970 --> 00:12:57.840
that you meet the alcohol or substance abuse syndrome
268
00:12:57.840 --> 00:13:00.150
or whatever, I'm not using the proper terminology.
269
00:13:00.150 --> 00:13:02.130
So say we give you that,
270
00:13:02.130 --> 00:13:04.130
and we think you're right on that point.
271
00:13:05.280 --> 00:13:10.280
And we have a kid on fentanyl, running away from home.
272
00:13:10.800 --> 00:13:14.583
We have all kinds, this is what we can do, right?
273
00:13:16.200 --> 00:13:18.450
We can make those kinds of calls.
274
00:13:18.450 --> 00:13:21.480
We can't decide whether you have a substance use disorder.
275
00:13:21.480 --> 00:13:24.540
That's a clinical decision, but we can decide,
276
00:13:24.540 --> 00:13:27.870
oh my God, that kid, there's a real danger
277
00:13:27.870 --> 00:13:29.480
that kid's gonna get hurt.
278
00:13:29.480 --> 00:13:32.880
And honestly, that the clinician is silly
279
00:13:32.880 --> 00:13:36.360
to think that that's not dangerous.
280
00:13:36.360 --> 00:13:38.490
Because we know too often about those kids
281
00:13:38.490 --> 00:13:41.410
who disappear from their home and get hurt
282
00:13:42.390 --> 00:13:44.520
when they're on drugs.
283
00:13:44.520 --> 00:13:47.010
So I mean, we know a lot about that.
284
00:13:47.010 --> 00:13:49.710
But Justice Kafka, remember,
285
00:13:49.710 --> 00:13:52.560
these are supposed to only happen in emergency, right?
286
00:13:52.560 --> 00:13:55.590
So a couple things.
287
00:13:55.590 --> 00:13:59.190
Yes, we as reasonable people, you as jurists,
288
00:13:59.190 --> 00:14:00.480
might look at a situation and say,
289
00:14:00.480 --> 00:14:02.970
well, geez, that sounds dangerous to me.
290
00:14:02.970 --> 00:14:04.980
But the statute is supposed to be
291
00:14:04.980 --> 00:14:07.890
this carefully circumscribed tool.
292
00:14:07.890 --> 00:14:11.460
And the danger has to be due to the disorder,
293
00:14:11.460 --> 00:14:13.890
not to just adolescent rashness.
294
00:14:13.890 --> 00:14:16.380
In the young woman's case,
295
00:14:16.380 --> 00:14:19.200
she'd already, she'd had two mental health lockups
296
00:14:19.200 --> 00:14:20.820
for two years prior.
297
00:14:20.820 --> 00:14:23.760
And she fled when she was basically said,
298
00:14:23.760 --> 00:14:26.430
you're going to this place voluntarily,
299
00:14:26.430 --> 00:14:28.740
or we're basically gonna put you in handcuffs
300
00:14:28.740 --> 00:14:31.050
and take you there, and she ran.
301
00:14:31.050 --> 00:14:33.240
And for the five days that she was gone,
302
00:14:33.240 --> 00:14:34.410
she was texting her mom,
303
00:14:34.410 --> 00:14:36.540
letting her mom know that she was safe.
304
00:14:36.540 --> 00:14:38.460
Mom didn't say that those texts
305
00:14:38.460 --> 00:14:40.470
sounded like she was loopy.
306
00:14:40.470 --> 00:14:42.300
There was no indication that she was high
307
00:14:42.300 --> 00:14:45.360
when she came back on her own.
308
00:14:45.360 --> 00:14:48.600
She, you know, she asked her mom if she could come home.
309
00:14:48.600 --> 00:14:50.550
I understand that these are dangerous,
310
00:14:50.550 --> 00:14:53.970
but there's gotta be a closer connect.
311
00:14:53.970 --> 00:14:56.370
And I, you know, the-
312
00:14:56.370 --> 00:14:58.770
Well, the alternative is we're gonna,
313
00:14:58.770 --> 00:15:01.350
we're endangering kids going too far the other way.
314
00:15:01.350 --> 00:15:05.490
I get the first person, he's, okay, he's classic.
315
00:15:05.490 --> 00:15:08.580
He's smoking too much marijuana.
316
00:15:08.580 --> 00:15:11.040
In the old days, he would be growing his hair long.
317
00:15:11.040 --> 00:15:13.110
Now he's cutting his hair off, you know.
318
00:15:13.110 --> 00:15:15.660
Sounds like this is not the kind of thing
319
00:15:15.660 --> 00:15:18.330
we wanna institutionalize somebody,
320
00:15:18.330 --> 00:15:21.990
but he's quite different from the second child.
321
00:15:21.990 --> 00:15:25.080
Right, well, so on the sort of the parade of horribles,
322
00:15:25.080 --> 00:15:26.220
and I'm just, I'm gonna watch my...
323
00:15:26.220 --> 00:15:28.980
I do actually wanna talk about the chronic,
324
00:15:28.980 --> 00:15:32.080
the vagueness issue, even given what you said.
325
00:15:32.080 --> 00:15:36.780
But the court's core judicial function
326
00:15:36.780 --> 00:15:41.780
is to construe statutes consistent with the Constitution.
327
00:15:42.060 --> 00:15:45.277
So the what would happen if we were to do it,
328
00:15:45.277 --> 00:15:47.190
you know, that's a little bit,
329
00:15:47.190 --> 00:15:49.350
again, order of operations out.
330
00:15:49.350 --> 00:15:53.220
First, test the statute, and if it's carefully,
331
00:15:53.220 --> 00:15:55.200
if it's not carefully circumscribed,
332
00:15:55.200 --> 00:15:59.310
as I contend it isn't, then what do you do?
333
00:15:59.310 --> 00:16:00.840
I thought we did that in a matter of minor.
334
00:16:00.840 --> 00:16:02.560
We told them the order of operations
335
00:16:02.560 --> 00:16:05.583
in matter of minor, right?
336
00:16:06.540 --> 00:16:08.850
I'm sorry.
We told juvenile judges
337
00:16:08.850 --> 00:16:10.530
what to do in matter of minor
338
00:16:10.530 --> 00:16:12.780
as far as the order of operations.
339
00:16:12.780 --> 00:16:14.070
Oh, no, but I'm telling you
340
00:16:14.070 --> 00:16:15.840
in terms of this court's consideration,
341
00:16:15.840 --> 00:16:19.380
it's sort of, that I don't think that you don't
342
00:16:19.380 --> 00:16:24.380
not get to the most extraordinary relief that I'm asking
343
00:16:25.660 --> 00:16:27.840
because of what might happen next.
344
00:16:27.840 --> 00:16:31.080
And if I can channel Justice Loewy for a second,
345
00:16:31.080 --> 00:16:34.050
in Chapman, I consumed so many oral arguments
346
00:16:34.050 --> 00:16:37.080
in the last few weeks, but during Chapman,
347
00:16:37.080 --> 00:16:40.470
the Commonwealth wanted you to overrule Johnstone.
348
00:16:40.470 --> 00:16:42.120
And the Commonwealth's argument was
349
00:16:42.120 --> 00:16:45.120
you couldn't have anticipated the consequences
350
00:16:45.120 --> 00:16:47.497
of that decision, and Justice Loewy said,
351
00:16:47.497 --> 00:16:49.537
"That's a legislative decision.
352
00:16:49.537 --> 00:16:51.397
"We look at the Constitution,
353
00:16:51.397 --> 00:16:52.957
"we construe statutes that way,
354
00:16:52.957 --> 00:16:55.410
"and then the legislature can fix it."
355
00:16:55.410 --> 00:16:57.330
You know, in Bruno, the court noted
356
00:16:57.330 --> 00:17:01.080
that for 10 years, there'd been no classifications for SDP,
357
00:17:01.080 --> 00:17:02.840
no commitment hearings for SDP
358
00:17:02.840 --> 00:17:07.260
because the statute had been, I guess it'd been reversed.
359
00:17:07.260 --> 00:17:09.000
I don't know the history of that statute,
360
00:17:09.000 --> 00:17:12.090
but for 10 years, that didn't happen, and we survived.
361
00:17:12.090 --> 00:17:17.070
And SDP is much graver concern and danger to the public.
362
00:17:17.070 --> 00:17:22.070
We're looking at the most extreme state power
363
00:17:22.140 --> 00:17:24.260
when we're talking about protecting people
364
00:17:24.260 --> 00:17:27.090
from their worst moments.
365
00:17:27.090 --> 00:17:28.950
Counsel, I don't disagree with you
366
00:17:28.950 --> 00:17:32.220
in the stuff that you, the lead up to it is very difficult,
367
00:17:32.220 --> 00:17:33.330
and I hear you.
368
00:17:33.330 --> 00:17:35.790
You know, somebody comes in for a warrant of apprehension,
369
00:17:35.790 --> 00:17:38.760
they have no idea, they haven't done anything wrong
370
00:17:38.760 --> 00:17:41.760
other than potentially being sick.
371
00:17:41.760 --> 00:17:45.510
But I give you, and I'm with Justice Kaffir on this one,
372
00:17:45.510 --> 00:17:47.310
because as a practical matter,
373
00:17:47.310 --> 00:17:51.960
we do tether the first finding to what the clinician says.
374
00:17:51.960 --> 00:17:54.930
It might not say that explicitly in the statute,
375
00:17:54.930 --> 00:17:56.730
but I don't think you hear any judge say,
376
00:17:56.730 --> 00:17:59.430
I don't credit, I credit what the clinician said
377
00:17:59.430 --> 00:18:02.040
and find the first prong.
378
00:18:02.040 --> 00:18:03.510
The dangerousest prong is the stuff
379
00:18:03.510 --> 00:18:05.360
that I'm really having an issue with.
380
00:18:06.210 --> 00:18:09.180
Judges do this all the time, and they do this,
381
00:18:09.180 --> 00:18:10.800
and we mentioned some other context,
382
00:18:10.800 --> 00:18:14.370
but we do it in bail, we do it in 58A.
383
00:18:14.370 --> 00:18:17.860
Judges all the time have to make determinations
384
00:18:19.300 --> 00:18:23.160
about the prospects of harm.
385
00:18:23.160 --> 00:18:27.150
So why do we need a clinician to say,
386
00:18:27.150 --> 00:18:32.150
in my clinical judgment, I think that X.
387
00:18:32.280 --> 00:18:34.740
Why does the judge need that?
388
00:18:34.740 --> 00:18:38.840
In part, so that the, partly because the,
389
00:18:38.840 --> 00:18:41.220
I think that some of what happens
390
00:18:41.220 --> 00:18:42.750
and what happened in my cases,
391
00:18:42.750 --> 00:18:44.460
in particular the Essex one,
392
00:18:44.460 --> 00:18:46.680
is you've got a parent who's very sympathetic,
393
00:18:46.680 --> 00:18:49.830
who's legitimately concerned about her daughter,
394
00:18:49.830 --> 00:18:54.450
and you've got a clinician who is sort of a neutral arbiter,
395
00:18:54.450 --> 00:18:57.510
says, you know, where's the imminence of harm?
396
00:18:57.510 --> 00:19:00.150
We may have a possibility of harm,
397
00:19:00.150 --> 00:19:02.667
but she's taken three doses of, if I could just-
398
00:19:02.667 --> 00:19:05.070
But hold on, but they're not a neutral arbiter, though.
399
00:19:05.070 --> 00:19:08.130
I mean, you mentioned what the judge is.
400
00:19:08.130 --> 00:19:10.380
The judge is both the finder of fact,
401
00:19:10.380 --> 00:19:13.740
so that's a witness, and the judge is free
402
00:19:13.740 --> 00:19:18.480
to not credit that witness when the witness says,
403
00:19:18.480 --> 00:19:21.570
I think this person can be out in the community.
404
00:19:21.570 --> 00:19:23.130
But again, I think it's about sort of,
405
00:19:23.130 --> 00:19:27.480
do you get to, do you get over like a required finding?
406
00:19:27.480 --> 00:19:32.040
If there's not competent evidence, and given this,
407
00:19:32.040 --> 00:19:33.570
I mean, there's a little bit of,
408
00:19:33.570 --> 00:19:36.840
why not require that there be some clinical,
409
00:19:36.840 --> 00:19:38.910
some professional assessment?
410
00:19:38.910 --> 00:19:43.910
Yes, the judge can decline if clinician says-
411
00:19:44.280 --> 00:19:47.370
What's the role of the judge then in this?
412
00:19:47.370 --> 00:19:51.510
To evaluate all of the evidence, absolutely to evaluate,
413
00:19:51.510 --> 00:19:53.900
but you're missing competent evidence.
414
00:19:53.900 --> 00:19:56.130
So it's basically heads I win, tails you lose,
415
00:19:56.130 --> 00:20:01.130
so if the clinician says this person should not be committed
416
00:20:04.590 --> 00:20:09.590
under your view of the constitutional provision,
417
00:20:09.990 --> 00:20:13.500
or limitations, the person can't be committed,
418
00:20:13.500 --> 00:20:16.020
just like QE, right?
Yes.
419
00:20:16.020 --> 00:20:19.830
But if the clinician says this person can be committed,
420
00:20:19.830 --> 00:20:21.990
the judge, and only then can say,
421
00:20:21.990 --> 00:20:25.470
I don't credit you, and I'm not going to commit.
422
00:20:25.470 --> 00:20:27.840
And the findings of the judge should explain
423
00:20:27.840 --> 00:20:31.020
why she doesn't credit the expert's testimony.
424
00:20:31.020 --> 00:20:34.110
Isn't that, you're sort of running right in the face
425
00:20:34.110 --> 00:20:36.780
of the legislature going the opposite way.
426
00:20:36.780 --> 00:20:39.420
Now, I understand, I want you to address Keniston
427
00:20:39.420 --> 00:20:43.800
before you sit down too, but the legislature is saying,
428
00:20:43.800 --> 00:20:45.480
the way it redrafted the statute,
429
00:20:45.480 --> 00:20:50.070
it's moving away from, it's going the exact opposite way
430
00:20:50.070 --> 00:20:51.510
that you're arguing.
431
00:20:51.510 --> 00:20:53.640
Now, we may need to make a correction,
432
00:20:53.640 --> 00:20:55.530
at least on the first part,
433
00:20:55.530 --> 00:20:59.370
but it's certainly not what they intended, that's for sure.
434
00:20:59.370 --> 00:21:00.660
May not be what they intended,
435
00:21:00.660 --> 00:21:03.000
but I'd actually, I'd point the court,
436
00:21:03.000 --> 00:21:08.000
the court cited to the 2019 section 35 commission report in,
437
00:21:09.000 --> 00:21:12.213
I think it was in GP, no, it might've been minor,
438
00:21:13.170 --> 00:21:15.840
and on page eight of that report,
439
00:21:15.840 --> 00:21:17.910
there was a recommendation that the Commonwealth
440
00:21:17.910 --> 00:21:20.340
should commence a process with the goal to reduce
441
00:21:20.340 --> 00:21:22.890
or eliminate the use of 35,
442
00:21:22.890 --> 00:21:26.340
as there is insufficient evidence of its efficacy
443
00:21:26.340 --> 00:21:29.940
to justify the deprivation of individual civil liberties.
444
00:21:29.940 --> 00:21:31.890
Six people on that commission said,
445
00:21:31.890 --> 00:21:33.270
yeah, that's what we should do, and three people said no.
446
00:21:33.270 --> 00:21:36.753
Before you sit down, Keniston,
447
00:21:38.280 --> 00:21:41.340
isn't it, can't we just say, okay,
448
00:21:41.340 --> 00:21:43.923
the legislature softened the first prong,
449
00:21:45.900 --> 00:21:47.370
whether they may have done that,
450
00:21:47.370 --> 00:21:51.150
but they can't constitutionally, so we fix that problem.
451
00:21:51.150 --> 00:21:54.330
Your brief suggests we can't fix that problem,
452
00:21:54.330 --> 00:21:57.570
we have to declare the whole statute unconstitutional.
453
00:21:57.570 --> 00:21:59.970
I don't, why?
454
00:21:59.970 --> 00:22:04.020
Well, I mean, there's the court's jurisprudence
455
00:22:04.020 --> 00:22:07.960
on section 123 has certainly embraced
456
00:22:07.960 --> 00:22:11.220
a lot of kind of importing standards
457
00:22:11.220 --> 00:22:13.770
and requiring doing sometimes declining
458
00:22:13.770 --> 00:22:15.990
to import language and standards,
459
00:22:15.990 --> 00:22:20.990
but as you just said, how do you reintroduce a standard
460
00:22:22.650 --> 00:22:24.630
that the legislature stripped out?
461
00:22:24.630 --> 00:22:26.220
'Cause they softened it,
462
00:22:26.220 --> 00:22:28.740
thinking that they could constitutionally,
463
00:22:28.740 --> 00:22:33.150
but they can't, and we're gonna say, nope,
464
00:22:33.150 --> 00:22:34.830
it needs to be supported.
465
00:22:34.830 --> 00:22:38.610
We've been doing, our whole case law in this area
466
00:22:38.610 --> 00:22:42.270
has been toughening up these statutes, haven't they?
467
00:22:42.270 --> 00:22:44.400
Look, are you gonna hear me complain
468
00:22:44.400 --> 00:22:47.130
if you judicially amend the statute?
469
00:22:47.130 --> 00:22:50.430
No, but I don't, I actually-
470
00:22:50.430 --> 00:22:52.760
Justice Loewy will be very unhappy with you.
471
00:22:52.760 --> 00:22:53.860
(laughing)
472
00:22:53.860 --> 00:22:56.820
And I know that my time's up,
473
00:22:56.820 --> 00:22:58.830
there was one brief point I wanted to make
474
00:22:58.830 --> 00:23:00.780
on the chronic and vague,
475
00:23:00.780 --> 00:23:04.170
just 'cause the Donohue issue that you can't,
476
00:23:04.170 --> 00:23:08.640
if those, the subsidiary clause of the harm
477
00:23:08.640 --> 00:23:10.410
in the substance use disorder,
478
00:23:10.410 --> 00:23:14.280
if that's modifying chronic use or habitual use,
479
00:23:14.280 --> 00:23:16.680
then you just get rid of chronic and habitual
480
00:23:16.680 --> 00:23:19.680
and it means the same thing and words have to have meaning.
481
00:23:19.680 --> 00:23:21.990
But there was a point that I didn't make in the brief
482
00:23:21.990 --> 00:23:24.030
about Donohue that I really wanna make.
483
00:23:24.030 --> 00:23:26.490
That case in which the appeals court said
484
00:23:26.490 --> 00:23:29.820
that chronic and habitual was unconstitutionally vague,
485
00:23:29.820 --> 00:23:31.590
that was-
We fixed that, right?
486
00:23:31.590 --> 00:23:33.083
Yeah, but the point-
487
00:23:33.083 --> 00:23:37.047
This is Justice Mielke's concurrence, we fixed that.
488
00:23:37.047 --> 00:23:40.350
Oh, right.
We said that chronic
489
00:23:40.350 --> 00:23:42.120
has a different meaning.
490
00:23:42.120 --> 00:23:43.380
Didn't we correct this?
491
00:23:43.380 --> 00:23:45.900
For purposes of section 35?
492
00:23:45.900 --> 00:23:48.270
I thought we've addressed the problem
493
00:23:48.270 --> 00:23:51.060
that Justice Mielke has identified.
494
00:23:51.060 --> 00:23:52.770
I wrote a decision.
495
00:23:52.770 --> 00:23:57.000
Oh, but if I get this just on Donohue,
496
00:23:57.000 --> 00:24:00.600
that in that case, the question was a physician,
497
00:24:00.600 --> 00:24:04.980
take Physician Smith, Physician A has a patient
498
00:24:04.980 --> 00:24:07.860
who's taken three tabs of fentanyl in a month
499
00:24:07.860 --> 00:24:10.267
and says, "I don't think that's chronic use,
500
00:24:10.267 --> 00:24:12.870
"so I'm not gonna report to the DPH."
501
00:24:12.870 --> 00:24:15.967
Physician B says, "Yeah, three tabs of fentanyl a month,
502
00:24:15.967 --> 00:24:18.510
"I think that's chronic, I'm gonna make that report."
503
00:24:18.510 --> 00:24:21.600
Physician A was criminally prosecuted because,
504
00:24:21.600 --> 00:24:24.570
and Physician B wasn't, and the court said,
505
00:24:24.570 --> 00:24:27.150
and of course now I don't have it in front of me,
506
00:24:27.150 --> 00:24:32.150
but vagueness is about sort of arbitrary assessment
507
00:24:32.490 --> 00:24:34.620
of things, and now you take those physicians
508
00:24:34.620 --> 00:24:37.560
and drop 'em into a section 35,
509
00:24:37.560 --> 00:24:40.237
and Physician A says, "Yes, this young woman
510
00:24:40.237 --> 00:24:42.877
"has a chronic disorder," and Physician B says,
511
00:24:42.877 --> 00:24:44.010
"She doesn't."
512
00:24:44.010 --> 00:24:47.340
There is no standard for chronic or habitual.
513
00:24:47.340 --> 00:24:50.190
It's not defined anywhere further in the statute,
514
00:24:50.190 --> 00:24:54.003
and without, and I don't know that the court can define it.
515
00:24:56.100 --> 00:24:58.470
So the physicians who are testifying
516
00:24:58.470 --> 00:25:01.340
on chronic, there's not a standard
517
00:25:01.340 --> 00:25:02.940
in the medical literature on that?
518
00:25:02.940 --> 00:25:05.550
Well, you know, as far as the AG's concerned
519
00:25:05.550 --> 00:25:09.120
to demand that this be a diagnosis
520
00:25:09.120 --> 00:25:13.500
is sort of reading a whole panoply of protections
521
00:25:13.500 --> 00:25:17.520
and time into this, and the fact is that the statute
522
00:25:17.520 --> 00:25:19.950
used to require, I think it was a psychologist
523
00:25:19.950 --> 00:25:22.830
or a psychiatrist to do the evaluations.
524
00:25:22.830 --> 00:25:25.380
Now it's basically, it's a social worker.
525
00:25:25.380 --> 00:25:29.250
Are they even able to make a medical diagnosis
526
00:25:29.250 --> 00:25:30.090
using the DSM?
527
00:25:30.090 --> 00:25:33.210
I'm not entirely sure, but I think you start
528
00:25:33.210 --> 00:25:35.193
to run into those kinds of problems.
529
00:25:37.680 --> 00:25:39.240
My time is way over.
530
00:25:39.240 --> 00:25:41.540
Thank you so much, and I'll stand on my brief.